The Mental Capacity Act 2005 is a major piece of cornerstone legislation that aims to uphold the rights and interests of individuals who lack the mental capacity required to make certain decisions for themselves. We’ll use our well-honed expertise to take a detailed look at the intricacies of this legislation, its key provisions, and how it intersects with Lasting Powers of Attorney to safeguard both autonomy and dignity.
What is the Mental Capacity Act?
The Mental Capacity Act, introduced in 2005, is a legal framework that seeks to clearly outline how you will be supported in decision-making or how decisions will be made for you if your ability to make important choices is affected by illness, injury, mental health problems, or the effects of medication.
This law protects vulnerable individuals aged 16 or over and states that every adult, whatever their disability, has the right to make their own decisions wherever possible. The Act places a strong emphasis on respecting individuals’ autonomy.
Included in the legislation is an outline of the following:
- What you can do to plan for a time when you cannot make decisions unaided.
- How you can ask someone else to help you make decisions or make decisions on your behalf.
- Notably, the Act also outlines who has the power to make decisions for you if you do not plan ahead.
What are your rights under the Mental Capacity Act?
- The Mental Capacity Act makes clear that any individual aged 16 or over who possesses the necessary capacity has the right to make their own decisions.
- Some exceptions may apply to the above. For example, if you are detained under the Mental Health Act 1983, others may make decisions about your treatment on your behalf.
- You will be assumed to possess capacity, providing you have not had an assessment demonstrating otherwise.
- Before it is assumed that you do not have the capacity to make your own decisions, support should always be provided to aid you in making these decisions, especially from health and social care professionals.
- You mustn’t be labelled as lacking capacity simply because you have made decisions that others do not agree with.
- If decisions are made for you, they must be in your best interests and ought to restrict your freedom as little as possible
How is a person’s mental capacity assessed?
A simple two-stage enquiry process is used to assess someone’s mental capacity.
Stage one: Does the individual have an impairment in the functioning of their mind or brain? This may include issues such as brain damage, dementia, mental illness, learning difficulties, etc.
Stage two: Does this impairment inhibit the individual’s ability to make necessary decisions? A person is considered unable to decide for themselves if they are unable to:
- Understand information about the decision that needs to be made.
- Retain this information.
- Use this information as part of the decision-making process.
- Clearly communicate their decision to others
What happens when someone is deemed as lacking mental capacity?
In line with the Mental Capacity Act, decisions can be made on your behalf if you lack the required capacity. These decisions can relate to your:
- Healthcare and medical treatment
- Welfare and personal care
- Finances
When a person is assessed as lacking the mental capacity required for decision-making, the Mental Capacity Act makes clear that any decision made on this person’s behalf must be in line with their “best interests”.
Decisions around healthcare and medical treatment
If, following an assessment, you are deemed to lack the necessary capacity to make your own decisions, decisions around your healthcare and medical treatment may be made for you. It may cover matters such as:
- Treatments from doctors or dentists
- Medical operations or surgery
- Examinations and tests carried out by healthcare professionals
- Blood transfusions
- Having samples taken from the body
- Chiropody, physiotherapy and nursing care
- Breathing, feeding, or drinking by artificial means
Decisions around healthcare and medical treatment typically need to go through legal authority channels or require permission from a court.
Routine decisions and actions
When a person lacks the required mental capacity, some routine decisions and actions can usually be made on their behalf by carers or professionals without legal authority or court permission. These might include:
- Administering routine medication.
- Visits to hospitals or GP practices for treatment or assessment.
- Providing nursing care or administering emergency first aid.
Decisions around welfare and personal care
Choices around your welfare and personal care cover day-to-day actions that affect your well-being, including decisions about:
- Where you are living
- Who you have contact with
- Washing, dressing or feeding
- Shopping and buying essentials
- Arranging personal care services
- Assistance with communication
- Arranging social care services or assessments
- Decisions such as these fall into the scope of “everyday” concerns. When it comes to these decisions, the Mental Capacity Act deems that whoever is most directly involved with the person can be the decision maker.
As such, family members, carers, and healthcare professionals are permitted to make and action these decisions if a person is unable to do so themselves. The system is designed to be flexible, allowing these decisions to be made without going through legal channels or requiring permission from a court, as long as they are made in the person’s best interests.
Advance decisions and Lasting Power of Attorney
If a person is lacking capacity, a carer or professional should not make decisions on their behalf if any of the following circumstances apply:
- They are aware that the person lacking capacity has made an advance decision and that the decisions they wish to make for them would go against this advance decision.
- They are aware that the person lacking capacity has a Lasting Power of Attorney (LPA) and that the decisions they wish to make for them would go against the decisions of the LPA.
- Their decision would go against one made by a court-appointed deputy.
- Their decision would go against one made by the Court of Protection.
What is an advance decision?
If you lose the ability to make decisions for yourself, an advance decision, also known as an advance directive, is a statement of instructions that clearly explains to professionals, family members and friends what you would like to happen regarding the specifics surrounding your treatment.
An advance decision invests you with the legal right to refuse specific medical treatment in a future scenario where you are not capable of voicing your feelings or making decisions for yourself.
For example, an advance decision can be used to express that you do not wish to be resuscitated if you develop certain medical conditions.
According to the Mental Capacity Act, an advance decision is legally binding as long as it is clear.
How to make an advance decision
You can only make an advance decision if:
- You are aged 18 or over.
- You have the mental capacity required to make the advance decision.
- You are able to make your advance decision orally or in writing.
An advance decision can be made:
- In writing.
- Orally, by telling a health professional.
- In your hospital or GP medical notes.
Ideally you should make your advance decision in writing. This is because:
- The instructions you are giving will be clearer and more comprehensible, which is extra important if your instructions are complex by nature.
- You can only legally refuse life-saving treatment if your advance decision is made in writing.
- It will be easier for others to obtain advice on your written instructions.
Making an advance decision is entirely optional. However, if you foresee a time when you may be too unwell to make your own decisions, making an advance decision ahead of time can help you to feel more in control of how your condition will be handled in the future.
Using a witness for an advance decision
It is a good idea to ask someone you trust to act as a witness when you make an advance decision. This is because a witness can confirm that you possess the capacity to make the decision at the time of making it, therefore helping to avoid future questions and complications arising.
Are health professionals required to follow advance decisions?
Yes, health professionals are generally required by law to act in line with advance decisions.
However, in an emergency situation you may be given treatment if it is not clear that your advance decision covers that particular treatment.
For example, a person suffering from a serious and worsening brain injury may make an advance decision – whilst they are still capable of doing so – outlining that they would not wish to be resuscitated if they developed heart problems at a time when they were no longer capable of making their own decisions. If this person was then involved in an accident that left them unconscious and injured, A&E staff may be uncertain as to whether or not the advance decision would apply in this specific scenario, and choose therefore to resuscitate them.
In some scenarios, healthcare professionals are not legally bound to follow your advance decision. This may be the case if:
- You have appointed an attorney under an LPA, and invested them with the power to make the same decisions or refusals.
- If you’ve regained your capacity to make decisions.
- If you are detained under the Mental Health Act and are receiving treatment for mental health problems.
- If a change in circumstances has occurred since you made your advance decision, i.e. improvements and advancements in relevant medication and treatment options.
Changing advance decisions
Advance decisions can be changed at any time, and you may wish to do so if your circumstances alter, i.e.
- If you become a parent.
- If you get married or enter a civil partnership.
It is a good idea to regularly review your advance decision to ensure it still accurately represents your wishes.
To change your advance decision, you should ideally do so in writing, and destroy your old advance decision to avoid future confusion over which one applies. It is also recommended that you tell people close to you that you have made a new advance decision, such as family, friends, GPs or carers.
What happens if I don’t have an advance decision arranged?
Without an advance decision to communicate your wishes, the Mental Capacity Act outlines that health professionals are invested with the right to make decisions on your behalf if you lack the capacity to make them yourself, as long as they are in your best interests.
Advance decision VS advance statement
Although these terms sound similar, they refer to different things.
Unlike advance decisions which outline clear instructions of what you wish to be done in specific scenarios, i.e. an instruction not to be resuscitated, an advance statement – also known as a statement of wishes – is a general reference that can be used for your treatment and care.
Your advance statement should reflect your views and beliefs and may be useful when other people are required to make decisions that will directly impact you.
It is not legally binding, but medical professionals are still obliged to endeavour to act in line with the preferences you set out in your advance statement, i.e. expressing preferences for one type of treatment over another.
Lasting Power of Attorney
An alternative to an advance decision is to make a legal document known as a Lasting Power of Attorney (LPA).
Under an LPA, you may appoint someone you trust to make decisions on your behalf in the instance that you are unable to make them yourself. This person is called your ‘attorney’.
An LPA allows your attorney to make decisions around your:
- Money and finances
- Property and assets
- Future healthcare and treatment
- Future personal care and welfare considerations
There are two different types of LPA; LPA’s for health and welfare decisions, and LPA’s for financial decisions.
Health and welfare attorney
If you are unable to make decisions for yourself, a health and welfare attorney can make decisions around things such as:
- The details of your daily routine, including what you eat and what you wear.
- Routine medical care.
- Where you should live, including decisions around moving into a care home.
- Treatment that could save or sustain your life, including refusing this treatment.
This type of LPA will only come into effect if you lose the capacity to make these decisions for yourself.
Financial attorney
If you are unable to make decisions for yourself, a financial attorney can make decisions around things such as:
- Bills
- Benefits
- Selling property
- Signing or terminating tenancies
Unlike a Health and Welfare LPA, a Financial LPA can be actioned even if you still possess mental capacity. A financial attorney can therefore assist you with your finances if you have mobility issues, for instance visiting your bank or solicitor on your behalf.
How to make a Lasting Power of Attorney
If you wish to make an LPA, it is essential that you:
- Are aged 18 years or over.
- Posses the capacity to make the same decisions that you wish to authorise your attorney to make on your behalf.
We recommend that you seek assistance from a solicitor, who can help you with the process.
It’s important to note that there are separate forms for financial attorneys and health and care attorneys. You may name the same person for both types of LPA but you must fill out each form separately.
When you complete the form, you must ask someone to sign a certificate of capacity. This certifies that you understand the LPA and that you are creating it of your own free will.
Planning ahead with Peter Ross Law
Here at Peter Ross Law, our specialist advisors have been assisting people with Lasting Power of Attorney for many years.
We can help you to create and implement a legally binding LPA, providing you with peace of mind that your future affairs and wellbeing will be handled in line with your wishes, thus protecting your dignity and autonomy.
Our team can also assist with Court of Protection proceedings and deputyship orders, in the event that someone has lost mental capacity.
Get in touch today to find out more and arrange a free consultation.